Archive for the ‘Law Update’ Category

I was reading the decision of GS Gill Sdn Bhd v Descente, Ltd and another appeal [2008] 6 MLJ 181 recently where the Court of Appeal had yet another instance to reaffirm the principle (which really needs no further affirmation or re-affirmation, but perhaps things are the way they are because some judges still need regular reminders every now and again; so I’m also not quite sure why this case even merits a report since it just rehashes principles long stated) that an appellate court would not interfere with an actual finding of fact by a trial court. What they would interfere with is only the inference of fact drawn from a finding of fact. Gopal Sri Ram JCA wrote the lead judgment and referred to the decision of Clarke v Edinburgh Tramways [1919] SC 35 and the dicta of Lord Shaw of Dunfermline which bears reproduction so that the thoughts it provoked from me can be better appreciated:

When a judge hears and sees witnesses and makes a conclusion or inference with regard to what on balance is the weight of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the judge makes any observations with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a court of justice. In courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate court? In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question, Am I — who sit here without those advantages, sometimes broad and sometimes subtle, which are the privileges of the judge who heard and tried the case — in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.

There are always pros and cons to an Act of Parliament. The notion that one cannot have the best of both worlds is indeed true and is applicable in this situation as what is good for the Executive may not go down well with the rest of the population. The proposed Race Relations Act is one fine example. Datuk Seri Shafie Apdal, the Minister of Unity, Culture, Arts and Heritage in his interview with the New Sunday Times, contended that the proposed Act is specific in which it would be able to deal better with issues of religion and sensitivities of race as compared to the Sedition Act or Internal Security Act which is too general, thus creating loopholes to prosecute alleged offenders.

One might think why do we need to formulate such Act after having achieved 51 years of Independence? Wouldn’t the world community laugh at us for the failure to govern race relations despite the existence of various policies and bodies which were meant to instill unity among Malaysians of all races and religions? I certainly have my reservations for that.

Great Britain was formed in the year 1707 with the passing of the Acts of Union which merged the two parliaments of England and Scotland while Canada was formed in the year 1867 by virtue of British North America Acts. They have both enacted Race Relations Act in which the former was established in 1965 and the latter in 1991. These countries were created way before Malaysia was born but the Legislatures see the necessity of enacting the Act which makes it unlawful to discriminate against a person on the grounds of race, colour, nationality, ethnic or national origin. Hence, the issue of humiliation does not arise here.

Thirdly, the whole idea that it’s unthinkable and dishonourable to switch parties stems from the idea that the party is always correct, and the representative should tow-the-line. This idea, unfortunately, is ingrained in Malaysian society, that both capable BN and Opposition candidates lose out because of blind party loyalty. People expect representatives to conform with their parties’ principles, for better or worse. People expect the political freedom of representatives to be restricted by their parties.

Such is the chain reaction effect of perpetuating a party-politic dependent democratic system, which is what the APHA does. People need to grow to have faith in their representatives, instead of relying on their favoured parties to control the representatives. For if we embrace the idea that party politics is the order of the day, and the law needs to entrench that order, why not just replace the whole electoral system with a pure party-based elections? No candidates, just vote for the parties. The party will later choose any of its member to fills its rank. Doesn’t matter who he is, since the only concern is not what the person believes, but that the person believes religiously to a particular party’s line. Isn’t such a system more effective in guaranteeing parties won’t lose control of their representatives once voted in?

Lastly, I find the APHA unfairly shifting the blame solely on the representatives. Since we place political parties on the pedestal already, shouldn’t it be the responsibilities of parties to choose their candidates wisely? If parties expect people to vote for their candidates, shouldn’t they be responsible of ensuring that the candidates chosen is a true party loyalist?

The APHA is thus hypocritical in the sense that it perpetuates the idea of party-politics, and yet effectively recognize that political parties are not strong enough to maintain loyalty and cohesiveness amongst its members. It’s an easy way out, isn’t it? Simply choose any Tom, Dick or Harry to run as candidate. No need to check his credentials. Why? Because if he goes rogue, the law will kick him out.

The third issue pertains to the effects of the APHA on the political climate of Malaysia. In my view, the APHA severely dilutes the spirit of democracy in Malaysia, and reinforces the centralisation of power by the elite few.

Malaysia adopts the British Westminster Parliamentary system. Entrenched deeply in this system is the role of party politics, as the majority in the Parliament determines the appointment of the Prime Minister, and consequently, the Cabinet i.e. the executive branch of the government. Such a system has been described, and criticised, as a system patronage, where the elite few at the top essentially controls the political minds and actions of the many lower party members below. It is not a perfect system, but one that works, with adequate check and balance.

Party politics in Malaysia is well-known. Candidates in constituencies are chosen by party leaders. And once elected, they are expected to agree with the party line, no questions asked. Opposing the party’s bill is tantamount to breaking ranks, and assures the rebellious representative a meeting with the party leaders. In short, there is hardly room for personal opinions, no matter how big or trivial.

In my view, the APHA effectively reinforces the idea of party politics, to the extent that threatens the democratic will of the people. By imposing legal sanctions against anyone who switches parties, it essentially sends the message to voters: “Vote for the party, not the individual”. Indeed, such a mentality is already prevalent amongst Malaysians. But is this a healthy mentality? No, it is not.

It has been weeks passed the 2008 General Elections. And yet the dust has not quite settled yet. In the aftermath, many voices for reforms have been raised. Amongst them, are calls for the enactment of an Anti-Party Hopping Act (‘APHA’) – a law which prohibits elected representatives (both Members of Parliament and State Assembly) to switch political parties after being voted in. Essentially, it has the legal effect of expelling an elected representative if he switches political allegiance during his tenure.

The idea was initially proposed by Datuk Zaid Ibrahim, the newly appointed Minister in the Prime Minister’s Department. Since then, it has rapidly gained support from many respected politicians, even among the Opposition, including Mentri Besar Datuk Nik Abdul Aziz Nik Mat from PAS and Karpal Singh from DAP.

There appears to be an urgent need for such a law, as one of the fallouts of the recent general elections has been the rumoured defections of certain elected representatives. PKR adviser Datuk Seri Anwar Ibrahim alleged that he met BN MPs from Sabah and Sarawak on crossing over to the Opposition.

This is not the first time such a law has been in the spotlight. In 1992, the Supreme Court ruled that an anti-hopping law enacted in Kelatan was unconstitutional as it violated the freedom of association as enshrined in the Federal Constitution. Interestingly, both the Sabah and Sarawak State Constitution has a similar law since 1986 and 1994 respectively. So far, such laws have not been challenged in the courts.

According to Article 10 of the Federal Constitution, freedom of association is not absolute. Restrictions can be imposed based on “public order or morality” – which is what most of the supporters of the anti-hopping law is justifying their claims on.
“I will propose to the Cabinet for consideration. It is an issue of integrity and morality,” said Datuk Zaid Ibrahim. “I am sure Malaysians would not want their politicians to hop”. Karpal Singh equated hopping parties as cheating and deception.

But first, let’s look before we leap. Are calls for an APHA justified? Is it effective in solving practical problems? Does it cause any adverse effects to the democratic electoral system in Malaysia? In my view, such a law is unjustified, ineffective and causes grave adverse effects to Malaysian democracy. And here’s why.